Brett Kavanaugh is now Justice Kavanaugh, dramatically tilting the ideological balance of the Supreme Court to the right, and opponents of his confirmation are still incensed. Fueling their rage is the sense that the outcome was exponentially undemocratic: a clearly partisan jurist, appointed by a president who lost the popular vote by millions, voted through by legislators representing less than half the population, has assumed a lifetime Court seat that mattered as much as it did because the Republican Senate caucus kept Barack Obama from filling one during his final 10 months in office.
Yet the sequence as described above leaves out a crucial player: the National Rifle Association. The group has played an under-appreciated role in turning judicial confirmations into tests of Republican purity, and took on outsized leverage in blocking the appointment of Merrick Garland in 2016. Senator Mitch McConnell has said so himself.
“I can’t imagine that a Republican majority in the United States Senate would want to confirm, in a lame-duck session, a nominee opposed by the National Rifle Association,” McConnell said on Fox News Sunday shortly Obama gave Garland the nod. McConnell made his statement as if stating the natural order of things. In fact, it marked a radical break from long-standing norms.
During the Clinton and Bush years, the NRA mostly sat out judicial confirmations. It might have boasted of kicking congress members out of office for voting to ban assault-style rifles or demonized ATF agents as “jack-booted thugs.” But when it came to Supreme Court and appellate nominees, the NRA let senators advise and consent without paying a political penalty, regardless of the potential Justice’s reading of the Second Amendment. Clinton’s first appointee, Ruth Bader Ginsburg, was opposed by a whole three senators. Stephen Breyer drew nine no votes.
Numerous Democrats did dissent from George W. Bush’s two successful SCOTUS appointments. But it was McConnell who dealt the definitive blow to bipartisan Supreme Court confirmations. When Obama’s picks came before the upper chamber, he asked the NRA to score senator’s votes on a nominee for the first time. With that move, McConnell put fitness for the nation’s highest court under the purview of a special interest group for which compromise is anathema.
In 2016, my colleague Mike Spies retraced the McConnell-NRA deal on Supreme Court confirmations in an article that now strikes me as newly timely. I hope you might take a few minutes this weekend to give it a read.